Tinplate Purchasing Corp. v. Tuteur & Co.

Each party wishes to first examine the other before trial.

There is no rule of this court with respect to priority of examinations before trial. Rule XX of the Bronx County Supreme Court and rule XI of the New York County Supreme Court, referred to by the parties, deal with this subject but those rules have no application in this court. The practice in this Department is that the party who first serves a notice of examination must be allowed priority in the examination over his adversary unless special circumstances require that the discretion of the court be exercised to direct a different order of examination. (Desiderio v. Gabrielli, 284 App. Div. 976.) The first notices of examination served in the instant action were those of the plaintiff on July 13, 1959. These notices were not premature since issue had been joined as of July 1, 1959. In this Department a notice of an examination may even be served simultaneously with the answer. (Desiderio v. Gabrielli, supra.) Accordingly, the plaintiff is entitled to examine the defendant before it is examined.

Even if, because of the return of plaintiff’s notices, the defendant’s notice of August 7, 1959 were considered to be the first notice the circumstances here are such that the court is constrained to exercise its discretion in plaintiff’s favor. While the defendant’s notice was served prior to the plaintiff’s second notice of August 12, 1959, the date set for the examination in defendant’s notice was more than a month after it was served while the plaintiff’s notice set the date of the examination 12 days from the date served. If the party serving a notice were always allowed to conduct his examination first, he might be in a position to prevent the other side from examining indefinitely by merely setting distant date for such prior examination.

The defendant’s motion is denied and the cross motion is granted. All the parties covered by the notices of July 13 and August 7 are to appear for examination at Special Term, Part II *536at 10:00 a.m., one week from the date of the entry of an order herein, at which time the defendant is to he examined by the plaintiff followed by an examination of the plaintiff by the defendant.

Settle order on notice.